Wednesday, Oct 13 2010
• 10 a.m. (ET)

Don’t Ask, Don’t Tell

A federal judge orders the Pentagon to stop enforcing the “don’t ask, don’t tell” policy regarding openly gay and lesbian troops: What the ruling means for the U.S. military worldwide and politics at home.

Guests

Alex Nicholson
executive director, Servicemembers United

Tommy Sears
executive director,Center for Military Readiness

Karlyn Bowman
resident fellow at the American Enterprise Institute

Evan Perez
reporter, Wall Street Journal

Transcript

10:06:55

MS. DIANE REHMThanks for joining us. I'm Diane Rehm. More than 14,000 service members have been discharged since 1993 under the Don't Ask, Don't Tell policy. Last month, a federal judge ruled the policy unconstitutional. Yesterday, she ordered the military to stop enforcing the policy. Joining me to talk about what the ruling will mean for the military, Congress and the administration, Tommy Sears. He is executive director of the Center for Military Readiness. Alex Nicholson is executive director of Servicemembers United. And Evan Perez is a reporter with The Wall Street Journal. Do join us, 800-433-8850. Send us your e-mail to drshow@wamu.org. Feel free to send us a message on Facebook or Twitter. Good morning, gentlemen. Thanks for joining us.

10:08:18

MR. EVAN PEREZGood morning.

10:08:18

MR. TOMMY SEARSGood morning.

10:08:18

MR. ALEX NICHOLSONGood morning.

10:08:19

REHMAlex, if I could start with you, you say this is good news, but to be celebrated with caution. Why?

10:08:31

NICHOLSONWell, we fully expect that this ruling maybe stayed within a relatively short period of time. And so we, of course, would not advise anyone who is gay and lesbian in the military to come out in response to this news. It's something that should be, you know, taken with a grain of salt, essentially. And we all believe that we should wait and see what happens with this ruling legally before anyone does anything. So we certainly advise caution.

10:08:59

REHMSo you think that there are going to be other repercussions? You don't think the judge's ruling is simply going to stand as is?

10:09:12

NICHOLSONWe don't expect that it will. Of course, you know, we didn't expect the ruling in the first place based on precedent. You know, we weren't necessarily expecting a ruling of this -- an injunction of this scope. You know, we've certainly succeeded in those regards. So we may succeed in other regards as well moving forward. But for now, we think there's a good chance that the administration is going to appeal the injunction as well as the decision, and that a stay will be coming pretty soon.

10:09:43

REHMBut it's interesting to me, Evan Perez, that the administration has already said it's in favor of this ruling to abandon Don't Ask, Don't Tell. So what's likely to happen next?

10:10:02

PEREZWell, I mean, as Alex says, it's likely the Justice Department will appeal the ruling. They're under an obligation essentially to defend laws that were passed by Congress and signed into law. And so that's their policy, and that's what they'll probably do. They're -- right now, they're studying the ruling, they say. The administration is also, perhaps, depending on the fact that it's hoping that Congress can repeal the law or at least start doing that -- start making the moves towards doing that in time to make this all moot.

10:10:39

REHMEvan Perez, he is a reporter with The Wall Street Journal. Tommy Sears, you as many others have said, this is not a matter to be decided by the courts. Why not?

10:10:58

SEARSWell, the constitution plainly gives authority for making laws and rules for the military to Congress. And as Evan just pointed out, Congress was in the process of considering this before it left. And in the actuality, they stopped the Defense Authorization bill before they left to go campaign in order to allow a review that's ongoing at the Pentagon to complete as the secretary, the chairman of the Joint Chief of Staff and the other service chiefs, had urged before Congress took any legislative action.

10:11:42

REHMSo what do you see as the Obama administration's options at this point?

10:11:50

SEARSWell, certainly, I think Evan and Alex have laid out the legal options fairly well. And I think what's been described up to this point is fairly likely. We're looking at, I think, a stay either from -- I think at this point maybe less likely the district court than the 9th Circuit itself, and then, clearly an appeal from the Department of Justice from the Obama administration -- as again Evan pointed out there -- under constitutional obligation to do.

10:12:16

REHMSo you don't see anything happening until after the elections?

10:12:22

SEARSAfter the elections for certain and after the Pentagon review on December 1, which certainly will lead to another area of debate that I'm confident we'll have some opportunity to get into.

10:12:39

REHMTommy Sears, the executive director at the Center for Military Readiness. Do join us, 800-433-8850. Alex, I know you were one of the plaintiffs in this case. Tell us your story.

10:12:58

NICHOLSONWell, I was basically being trained as a human intelligence collector in the Army before and after Sept. 11, 2001. When I was outed by a colleague within my unit, the information filtered up to my command. And when the command was backed into a corner from which they had -- they essentially had to discharge me because they were backed into a corner with this information having been presented to them that I was now gay, and the information was filtering out within the unit. So I was discharged under Don't Ask, Don't Tell, having been a multilingual human intelligence collector just six months after 9/11.

10:13:33

REHMGive me an idea of some of the situations you performed, some of the intelligence you were able to gather because of your multilingual abilities.

10:13:50

NICHOLSONWell, multilingual recruits are, of course, a coveted prize for the military. But it's interesting to note that in 2001, around the time I was in, the military was very much in transition because of 9/11. The military was set up to do a certain type of intelligence gathering and intelligence analysis in the post-Cold War period. And that went right up until Sept. 11 on the dot. Things transformed dramatically as of Sept. 12. And so it was a very transitional time for military intelligence, and, I think, for U.S. intelligence in general.

10:14:28

MS. KARLYN BOWMANHuman intelligence collectors are involved in things like interrogating detainees, which, of course, became very important as the conflicts came about in years later. But at that time, they were more involved in things like document exploitation, a lot of translation work, utilizing their linguistic skills, and also what's referred to as source collection operations -- Force Protection Source Collection Operations. Those are some of the types of things that human intelligence collectors worked on both before 9/11 and especially after 9/11 as those roles expanded.

10:15:04

REHMSo as a matter of practice, you were operating in the Don't Ask, Don't Tell kind of framework, and someone else outed you, is that correct?

10:15:22

NICHOLSONThat's correct. I was making every effort to abide by Don't Ask, Don't Tell. And in fact, you know, Don't Ask, Don't Tell, of course, is a soundbite that a lot of people -- gay and lesbian youth going into the military included -- do not realize the full implications of. And when I went into the military, I thought, you know, Don't Ask, Don't Tell means I will keep my private life private, and nobody is going to inquire or be intrusive into my private life. And I shouldn't have a problem. That's pretty much what I attempted to do. And when I was inadvertently found out through a fluke by a colleague, that information was spread, you know, against my will to the rest of my unit. So that's how I was outed. It wasn't because I proactively came out.

10:16:00

REHMNow, there are 14,000 service members who've been similarly discharged since 1993. Do you think most of those stories are similar to yours?

10:16:16

NICHOLSONI think there is -- no. I think there's a very wide range of circumstances that lead to discharge. I mean -- you know, a lot of people make the proactive decision to come out because of the integrity issue. You know, many people go in to the military not realizing they're gay, not having come to terms with their sexual orientation. And they're then told, you know, in many respects by the policy that, you know -- and by some people's interpretations of the policy -- that they're not supposed to be gay in the military. So, of course, they face this, you know, sort of difficult quandary to deal with. Many others are outed inadvertently. And it's important to note that many decide to come out and serve openly in the military, as many are right now, and just don't have a problem. Experiences range the spectrum.

10:17:01

REHMI had been under the impression, Evan Perez, that Secretary Gates had said no one shall be discharged because of third party accusations. Was that ruling in place?

10:17:20

PEREZRight. I mean that has done a great deal to at least reduce the type of situations that Alex faced, for example, because, now -- essentially under the new policy that the Secretary of Defense put in place -- essentially, you know, third party -- you know, if you don't out yourself, typically, you won't be investigated. And those -- the proceedings won't continue. People on the other side, people -- gay rights activists and others point out that there are still so many discharges already in the pipeline that have continued to go through. There's many examples of people who the military had started investigating, and they are still being pursued in -- well, at least until this ruling came in.

10:18:13

REHMEven though they were outed by a third party, is what you're saying?

10:18:18

PEREZRight, right. And that the Secretary decided to make that change earlier this year. And as you know, when Congress comes back, you know, for the lame duck session, it appears they're going to take this up.

10:18:30

REHMEvan Perez, he is a reporter with The Wall Street Journal. Do join us, 800-433-8850. Stay with us.

10:20:03

REHMAnd we're back, talking about a ruling yesterday by a federal judge ordering the military to stop enforcing the Don't Ask, Don't Tell policy. Here's an e-mail from North Port, Fla. David says, "I personally don't care if there are gays in the military, but this judge is clearly out of line. Could your guests please explain where the judge found the constitutional right to serve in the military?" Tommy Sears.

10:20:44

SEARSThat's absolutely a terrific question because the law that's currently on the books states quite plainly that there is no constitutional right to serve in the United States military. And that's based -- going back to the constitutional authority for the Congress to make laws and rules governing the military. As I put it often in discussions like this, as much as people feel like they may have an obligation or a duty to serve in the military, it is not their decision whether or not they're in the military. It's the military's decision, and that is necessary in order to have the highest standards to maintain the greatest combat effectiveness for the best force. Clearly, as we all know, it's the best that the world has ever known.

10:21:24

REHMSo you think this judge was clearly out of line.

10:21:29

SEARSOh, I think without question. She has essentially substituted her judgment for that of Congress and our military leadership.

10:21:37

REHMWhat do you think about that, Alex?

10:21:40

NICHOLSONWell, I think we are certainly in agreement that there's no constitutional right to serve in the military. The military discriminates on many bases, and necessarily so. I mean, the military discriminates based on weight. They discriminate based on age. They discriminate based on disability. And, you know, like my colleague mentioned, that is something that is necessary to maintain the absolute best fighting force in the world and in history.

10:22:03

NICHOLSONThe interesting thing, though, that I think you need to keep in mind, is that things like wage, age, disability, weight, all inhibit one's ability to perform a mission. Sexual orientation, of course, does not. Sexual orientation discrimination within the military is about the reaction that other troops might have to knowing that someone they are serving with and working with is gay or lesbian. You know, like I mentioned earlier, we have numerous cases going on right now, hundreds and hundreds that I know of personally, of men and women who are serving openly gay on active duty right now with the full knowledge of their peers and commands, without all of the hypothesized cataclysmic situations coming into being.

10:22:45

REHMSo, Evan Perez, what was the basis on which the judge made her ruling?

10:22:53

PEREZWell, the judge cited a number of things, including the Supreme Court ruling a couple of years ago that invalidated a Texas law that essentially made homosexuality a crime. And so the judge cited that, among many reasons, why she found other court decisions that have gone to the contrary, why she -- that, you know, she cited those as -- essentially as reasons why those didn't matter in her view. She also listened. She had two weeks trial, I believe. And she cited all the -- a lot of testimony, which, to her, indicated that there wasn't a -- an impact on military readiness, that essentially what was at issue here was First Amendment and Fifth Amendment rights of citizens who are in the military.

10:23:53

REHMHere's an e-mail from James in Baltimore, Md. He says, "Gays and lesbians have been serving honorably and dying for thousands of years. Other countries seem to have no problem with it. Why then do so many in the U.S. seem so opposed to it? Is it our puritan ethic? Is it bigotry? Or is it just plain ignorance?" Tommy Sears.

10:24:27

SEARSYes. According to our count -- and I think this is consistent with sources that Evan and Alex are probably aware of -- there are 25 countries in the world that allow homosexuality in some degree or form as an accepted status in the military. Most, if -- many, if not most, of those militaries are not allowing homosexuality in a full and open status like those here in the United States, as Alex is on the side of -- or advocating for. In other words, you are restricted to certain jobs, certain positions, certain missions and so forth.

10:25:19

REHMSuch as?

10:25:20

SEARSWell, for instance, maybe you're not in an elite combat unit. Maybe you're not on a submarine. Maybe there are other, you know, missions and jobs that they have in their particular militaries that they've decided that, for whatever reason, homosexuality is not compatible for their force. With that said, however, these 25 militaries that we're talking about, they do -- none of them are comparable in terms of the worldwide responsibilities and expeditionary nature as the United States military. They pale in comparison in terms of their responsibilities and their capabilities.

10:26:02

REHMWhat about the U.K., for example?

10:26:06

SEARSWell, in the case of the U.K., certainly, they were ordered by the European court to open their military to homosexuals. Certainly, I think their case is different from the United States from the standpoint that they acceded to the order. I think in the case of the United States here, just culturally as a country, we would not have accepted that because I don't think that the culture of our military or our populace in general is amenable to extra national orders from international organizations.

10:26:44

REHMSo what you're saying is that the U.K. does, in fact, allow its members of the service -- gay, lesbian or otherwise -- to serve in any and all capacities?

10:27:04

SEARSI'm not absolutely sure about all of their restrictions in terms of who's able to serve in what particular capacity, as far as missions go. And the U.K. military, I know, has a general principle. They accept homosexual -- open homosexuality in their military. But again, I think still, even comparing the U.K. military to the American military in terms of worldwide responsibilities, the kinds of deployments that we do is still an apples and oranges comparison.

10:27:37

REHMAll right. And joining us now by phone is Karlyn Bowman. She's senior fellow at the American Enterprise Institute. Good morning to you, Karlyn.

10:27:50

BOWMANGood morning, Diane.

10:27:51

REHMGive us a sense of what public opinion polls are telling us about trends in public opinion on lesbian issues and gays.

10:28:04

BOWMANWell, we've seen some very remarkable changes over the last 30 years. For example, when the Gallup organization asked for the first time about whether or not homosexuals should be hired for a variety of different occupations, they asked about military. And in 1977, 51 percent favored homosexuals being hired for the military. That's now three-quarters of all Americans. The questions are asked very differently about openly gay and gay men and lesbian women serving in the military. And again, we've seen some changes over time. In 1994, one of the pollsters asked that question directly and found that 53 percent were in favor of openly gay and lesbian men and women serving in the military. That's now 67 percent. So again, we've changed our mind about a lot of these issues over the last 30 years.

10:28:54

REHMAnd what about attitudes on gay marriage, for example?

10:29:00

BOWMANThat's an area where Americans are still drawing the line. A majority in most polls oppose gay marriage. But again, that has been -- that attitude has been changing over time, in part because young people are very accepting of the idea. A solid majority of men accept the idea of gay marriage. And as each younger cohort replaces the next cohort, we can expect those attitudes, perhaps, to liberalize a little more.

10:29:26

REHMConsidering the judge's ruling yesterday, what do you expect to happen next?

10:29:34

BOWMANAgain, I'm not an expert on the legal issues involved in this overall. I don't expect the public opinion on this issue will change very much in the next few weeks, few months. I think you will continue to see about two-thirds -- perhaps in some polls a little more -- of the public favoring openly gay people serving in the military.

10:29:52

REHMKarlyn Bowman, she is senior fellow at the American Enterprise Institute. Thanks for joining us.

10:30:01

BOWMANThank you.

10:30:02

REHMAnd if you'd like to join us, we'll open the phones very shortly. Tommy Sears, I know your organization has argued that a repeal of this ban is going to have a negative impact on military readiness. Tell us why.

10:30:26

SEARSWell, for the reasons that the law itself currently states, we talked earlier about how there was, I think, a week or two-week trial just now in the case that's -- what we're talking about today. But when Congress considered this issue 17 years ago, it had 12 hearings, numerous field hearings and months of testimony, and that was what resulted in the law we have today. And I think any serious debate of this issue would find that what was determined by that investigation and study by Congress in 1993 are largely as valid today as they were then.

10:31:07

SEARSIf I could for just a moment, I'd like to speak to what Ms. Bowman had to say about the survey information. That's -- her information is based on surveys of adults, as I understand, and some kind of -- in some cases, registered voters. Center for Military Readiness put together a project earlier this year. It's called the Military Culture Coalition, and as a part of that effort, we conducted our own poll. And this is a poll of likely voters. And among likely voters, the information is far different.

10:31:42

REHMSo you're talking about likely voters. She looked at voters.

10:31:49

SEARSI'm not sure if she said voters, or if she said adults just broadly, but a quite more broad -- an admittedly wider universe of respondents. However, there is some correlation here in terms of why I think this is more relevant than what she's speaking to that I'll try to draw out. We found some very interesting results that are in contrast with her result or the results that were -- came out of her surveys, and one was that by about a 30-point different margin, there was opposition to getting rid of the current law. About 48 percent, 45 percent margin, that's within the margin of error.

10:32:36

SEARSBut it was evenly split on likely voters, whether or not they wanted the law to be gotten rid of, to be repealed. Among military personnel and military families, 57 percent want the law to remain the way that it is. And that result in our poll, likely voters happens to match almost identically what the Military Times poll has found for four years running, which was about a 58 percent number that their service members responding to their poll wanted to see the law maintained.

10:33:07

REHMTommy Sears, he is executive director of the Center for Military Readiness. You're listening to "The Diane Rehm Show." And in all fairness, we should say that Karlyn Bowman is not herself a pollster. She was referring to Gallup and other polls. How do you respond, Alex?

10:33:35

NICHOLSONWell, two responses come to mind off the top of my head. Number one is anytime someone says, we did our own poll, that raises a red flag with me. Being in the interest group community, like Tommy is, you know, I am obviously aware that there are many ways in which doing your own poll can lead to vast levels of manipulation. But I would also caution anyone who is comparing the results to those of Military Times polls because those are, of course, subscriber polls. And, you know, the Military Times polls have been found to be methodologically flawed in numerous ways. And that's been thoroughly discussed in media and in interest group circles extensively. You know, I believe the ones that your guest was referring to the polls are, of course, objective polls.

10:34:23

NICHOLSONThere are many polls out there on this issue, and I think we should take, of course, a broader look at the polls overall. You know, there have been polls of military personnel, of, you know, Americans in general, voters, likely voters. There have been -- there's been extensive polling on this issue. And looking at the average of all those polls or taking those polls comprehensively and analyzing those results clearly show that the overwhelming majority of the American public voters -- conservatives, Republicans, Democrats, it doesn't matter what demographic you look at -- think that Don't Ask, Don't Tell should no longer be the law of the land.

10:34:58

REHMSee, interesting that following the ruling, government attorneys had asked it apply only to members of log cabin Republicans, but she -- and we should mention, she is U.S. district court Judge Virginia Phillips -- said it applied to all U.S. military personnel, Evan.

10:35:26

PEREZRight. That was a big surprise to many people in the government, including people in the administration who, as you know, want the policy repealed. There have been other courts that have ruled otherwise and so this...

10:35:40

REHMBut explain that reference to log cabin Republicans.

10:35:46

PEREZWell, log cabin Republicans is the group that initiated the lawsuit. And so they are the group that, you know, had to fight whether or not they had standing in the court. And so it was a whole battle with the government beginning from that point. And so, you know, at first the government wanted this ruling to be much more limited in scope, especially, again, because there are other courts that have ruled otherwise. This judge just found that the constitutional question, the basic question, was much more important than, you know, to limit it to just one group.

10:36:22

REHMShe also said that in addition to being a violation of due process and First Amendment rights, the policy has had a direct and deleterious effect on the armed services. What's the evidence she is citing, Alex?

10:36:46

NICHOLSONWell there has been evidence dating back to the 1950s that there's no connection between -- or at least there's no negative correlation between sexual orientation and military service. There have been numerous studies and reports done by the Department of Defense, by independent agencies, by academics and researchers showing that there's no negative impact on military readiness or morale or unit cohesion from the presence of openly gay men and women in the U.S. military. The judge reviewed and accepted into evidence a vast array of these studies that have been done. She also took testimonies from a pretty wide array of experts during that two-week trial. And the government, of course -- it's important to note -- put on no case. They had nothing to offer up.

10:37:32

REHMAlex Nicholson, he is executive director of Servicemembers United. We'll take just a short break. When we come back, we'll open the phones. Stay with us.

10:40:03

REHMAnd we'll open the phones now. First to Bruce in Alexandria, Va., you're on the air.

10:40:12

BRUCEThank you for taking my call.

10:40:14

REHMSure.

10:40:14

BRUCEI served for 26 years as a military officer and recently retired. And I'd like to offer that I served with gay and lesbian members my entire career. They serve proudly and admirably in defense of the nation that they love. And I think that we're going to look back on this period -- soon I hope -- similar at how we look back on African-Americans and women in combat. Unfortunately, now, we're in the sausage-making, and it's going to go back and forth. But we will look back on this period of time, and we will wonder why we didn't do this sooner.

10:40:53

BRUCEAnd I would say one more thing, and then I'm going to need to sign off. And that would be, we need to give the military credit to maintain good order and discipline. The military is very capable of doing that. The United States military is a fine organization, and it is capable of maintaining good order and discipline in monitoring correct behavior through its uniform code of military justice.

10:41:15

REHMThank you, Bruce. Tommy.

10:41:18

SEARSYes. And I would, in general, agree with most in terms of the good order and discipline comments of the caller. I would say, however, in terms of the analogy that this is somehow a civil rights issue, that just -- that argument just falls apart. The prohibition or -- I'm sorry -- the segregation in the military that was eliminated during the Truman administration was done for completely rational reasons. We needed the troops. And obviously, it was also irrational to discriminate on the basis of someone's skin color, whether that be black, brown, yellow, what have you. What -- as chairman of the Joint Chiefs Colin Powell at the time said -- though I know that he has now come out in favor of at least review of the law -- what your skin color may be, what your ethnicity may be, has no bearing whatsoever on what your conduct is. And that's -- had -- was an irrational basis for excluding people...

10:42:20

REHMAll right.

10:42:20

SEARS...in the military. However, what your sexuality may be is the most profound of behavioral characteristics, and it goes directly to conduct, which is what the law is specifically about. It's about conduct. It is not about a particular classification.

10:42:39

REHMAlex.

10:42:42

NICHOLSONYou know, when folks dismiss the race or gender analogy, I like to remind people that they're, of course, not 100 percent analogous. Very few things are. But, you know, just like you can't -- well, they say you can't compare apple and oranges, but I like to retort that, you know, sometimes you can. They're both round. They're both fruit. They're both organic. So although an analogy may not be 100 percent, it is certainly, in this case, I think, enough to be instructive.

10:43:12

NICHOLSONThe problem with African-Americans in the military as foreseen by some in that day was not anything related to, in the purest sense, their skin color. It was the reaction of white troops to having to work and serve beside someone of a race that they may not have liked. And we saw, despite all the predictions, despite all the threats of a collapse of, you know, cohesion of military readiness at the time, that when integration was ordered, when the military saluted, and when it happened, those predictions did not come true. Just like, you know, we argue that when Don't Ask, Don't Tell is repealed, you will not see these cataclysmic hypotheses coming to pass.

10:43:56

REHMAll right. To Chuck in Tampa, Fla. Good morning. You're on the air.

10:44:03

CHUCKThank you very much. I am -- I love this conversation, and I think it's a very healthy one to have. But I think it's part of a larger issue. You know, we've seen in the last month or so three young people take their lives because of bullying and because of their identity issues and how they interacted with society. And I think much in the way that we saw the trickle-down economics didn't work, I think what this is, is trickle-down discrimination, that when our government tells people that being gay or lesbian is wrong by Don't Ask, Don't Tell, by marriage equality, by other issues like this, it sends a message down the ranks that people are bad internally. And I -- while I applaud what the judge did, I think I also agree with what some people have said, that I wish Congress had done this instead of a judge. Because, now, it's -- it will continue to be a divisive and a wedge issue because a judge made the ruling, and Congress didn't do it.

10:45:04

REHMTo follow up on Chuck's point, here's an e-mail form Dominique who's here in D.C. who says, "Wouldn't the best move for the White House be to not contest the judge's ruling? Let gays serve openly. Show the nation that nothing changed. The military still function. And it was a non-issue. Then let Congress repeal the law. It would be a lot easier for everyone, and the discrimination would stop sooner." What do you think, Alex?

10:45:47

NICHOLSONI think the prediction that the listener makes is pretty spot on. I mean, you know, like I've said earlier, we have many, many, men and women who are gay and lesbian on active duty right now serving openly. The law has deteriorated to a state of arbitrary and capricious enforcement, and many people are defying the law -- service members, commanders looking the other way. And I think, you know, if the president does let the ruling stand, let the injunction stand, and for a period of time we do have people coming out and serving, that you will see that it is a non-issue. I agree.

10:46:25

REHMEvan.

10:46:26

PEREZWell, the -- I think that Congress is -- the Democrats are saying that they're going to bring this up during the lame duck session after the elections. So we may yet see another -- some more action by Congress on this. I also want to bring up one thing that the judge actually did during the trial. One of the things she examined was the issue of, for example, you know, showers in the military. She -- I mean, she went to that level. And one of the things that she decided was, essentially, you know, during -- except during basic training, during a few weeks, you know, in the military people, you know, aren't showering together anymore. It's not that, you know, the quarters are so different from what a lot of people are imagining.

10:47:09

REHMMmm.

10:47:09

PEREZSo that was an interesting thing that, you know, the things that she did -- the lengths that she went to, to try to figure out what was at issue here.

10:47:18

REHMAnd here's an e-mail from Nancy who says, "I'm always puzzled with the continued dichotomy in moral outrage. There is a great outcry against homosexuality. And rape of boys, rape of girls and women is just ho-hum. Is the military" -- sorry -- "in the military, rape of women is common. Why aren't we not talking about that? It's the Don't Ask, Don't Tell that our society condones." Tommy.

10:48:00

SEARSWell, first of all, in terms of the e-mailer's question, that is one of the more stark and disturbing results of misconduct in the military. And again, as I said before, there are a lot of talks about conduct. And that is exactly where our focus should be in this discussion. What -- the reason the law is there, is to maintain, as it says, good morale or discipline and unit cohesion. And anything that detracts from that lowers the readiness of the force. And so...

10:48:34

REHMAnd that's heterosexual conduct.

10:48:36

SEARSAnd that is heterosexual conduct.

10:48:39

REHMRight.

10:48:39

SEARSSo if you get rid of the current law, then you are going to -- I'm not saying that there aren't homosexuals present today in the military by virtue of the Don't Ask, Don't Tell policy. However, there is -- you don't have the open recognition of such. And so you are going to increase the incidences of misconduct potentially three-fold because then you then have misconduct by potentially males and males, females and females, as well as the heterosexual misconduct we have today. So you are creating the opportunity for heightened misconduct in the military by instituting a policy that is not grounded in good order, discipline, unit cohesion and military readiness.

10:49:32

REHMAlex, do you want to respond?

10:49:35

NICHOLSONSure. In the militaries of our allies where bans have been repealed or lifted, you did not see these hypothesized increases in misconduct. In U.S. military units, where you have gays and lesbians serving openly on the ground right now, you do not see increases in misconduct of this nature coming to pass. I think it's a -- you know, I think it's a political scare tactic to make that claim. And I don't think that that claim is given serious weight in the political discourse. We haven't seen it made by many actors beyond, you know, those affiliated with the Center for Military Readiness. I just don't, to be honest, believe that that would come to pass. And I don't think it's supported by the live experiments and evidence on the ground today.

10:50:30

REHMAll right. To North Carolina in Raleigh. Hi, Mary Kay, you're on the air.

10:50:37

MARY KAYYes, ma'am. Thank you. I wanted to echo the comments of the first caller. I'm a fellow officer of 23 years and recently retired. I'm not gay, but I have served with many gay and lesbian soldiers and officers. And so I also want to echo his comment that conduct and behavior is a command issue. And command can handle whatever orders. My main comment I wanted to make is about the survey that the military leadership is doing in the ranks. I find that to be preposterous. In my 23 years in the Army, no one ever asked me what I thought about an order I was going to get. When I was with the 82nd Airborne in Afghanistan for 12-month orders, and they extended that to 15, no one sent an e-mail survey down from DOD to see how I felt about it. And so I think that that's really namby-pamby, and that how the military should work is the leaders decide.

10:51:39

REHMHmm.

10:51:39

KAYThey tell the leadership down the chain, and the chain does it. And my rhetorical and maybe not rhetorical question is, when blacks were integrated into the military, when women were integrated, were surveys sent out...

10:51:52

REHMHmm.

10:51:53

KAY...by the military leadership to ask the troopers what they felt about that?

10:51:58

REHMEvan, can you comment?

10:52:00

PEREZWell, I think, you know, the caller raises an interesting point. I mean, if -- I think there is no doubt that if the leadership of the military gave an order, I think judging from the professionalism of the force, that it would be carried out. I think this is essentially trying to figure out how best to -- the way they described it, the way the Pentagon has described it is, is a survey to figure out how best to make this change, to sort of assess, you know, what the impact, what the response is from members of the military and to figure out how best to make this happen.

10:52:31

REHMWhat do you think of those surveys, Alex?

10:52:35

NICHOLSONI'd certainly agree with the caller that it was quite unprecedented to survey the force on a personnel policy change in such a broad manner. You know, the military actually -- you know, to correct the caller -- did conduct some surveys on integration before the policy change took place. You know, the military surveyed a couple of thousand people to get their opinions on that potential policy change. The 400,000 people being surveyed on a personnel policy change, that is inevitable, was preposterous. And I think it just goes to show -- I think we'd all agree that much of the review, the study, was done for political purposes, for purposes of political cover. And it sets a -- you know, from a defense policy perspective, doing that, I think, set a very bad precedent. Because you're going to have people wondering exactly what the caller suggested. When the next policy change comes up, why aren't you surveying me on that? Why don't you care about extending my deployment?

10:53:30

10:53:42

JOHNIn responding to the ruling, the Justice Department decided that this ruling would prevent the government from discriminating against people based on sexual orientation and other areas of the government. And your guest was wrong in saying that the president is compelled constitutionally to defend this. So how can we not see the Obama administration's continued defense of Don't Ask, Don't Tell is anything other than homophobia?

10:54:09

NICHOLSONYou know, I would say that -- I would put myself somewhere in the middle of these two camps, between the caller and the other guest. I think there certainly is a minimal duty to defend the law by administration. But that minimal duty to defend, I think, does not excuse how far the Obama administration has gone to try to quash the legal cases particularly this case, log cabin Republicans versus United States of America. The government has gone to quite extraordinary lengths to try to file, for example, emergency motions to the appellate court four months after the thing they're following the motion about took place. For example, the judge called them out in previous rulings and opinions throughout the case. But, I mean, generally, I would agree that, you know, there is a minimal duty to defend. It doesn't necessarily mean that they have to, you know, go far and beyond. And that would include, I think, appealing this decision.

10:55:09

REHMAnd here's a final e-mail from Robert in Michigan who says, "Consider the Marine named Roche, whose case is narrated in the findings of fact in yesterday's decision. He stuck to the Don't Tell part of the law and was mercilessly tormented by his fellow soldiers. Is this the famous unit cohesion that would be undermined if openly gay soldiers served in the military?" What do you think, Tommy?

10:55:48

SEARSWell, certainly, any kind of harassment at any level in the military is, you know, certainly improper and cannot be tolerated.

10:55:59

REHMBut it does happen.

10:56:00

SEARSWell, certain -- well, of course. I mean, we have all kinds of misconduct. It happens in all facets of life every day. But if I could just -- lots of things here, first of all, the law does not say that it is wrong to be homosexual. What the law says is that homosexuality is incompatible with military service. And the reason for that is for the 15 findings that are stated in the law that Congress found before it enacted it in 1993. For all the reasons, that are stated there, two of which are the unique specialized society that military is and the unique conditions of military service that are different from the civilian world.

10:56:38

REHMI'm going to give you the last word on that, Alex.

10:56:42

NICHOLSONYou know, I would say that, you know, Tommy keeps referring back to the findings made by Congress. Congressional hearings, and metaphorically I'm putting that in air quotes, "are inherently political." They are not objective analyses of a situation. And the Congress could find that the sky is blue by a simple majority vote or -- excuse me -- that the sky is red by a simple majority vote if it decided to. So I don't think that's necessarily evidence of anything.

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